Thomason v. Willingham, 43764.
Decision Date | 19 November 1968 |
Docket Number | 43764. |
Citation | 118 Ga. App. 821,165 S.E.2d 865 |
Parties | THOMASON et al. v. WILLINGHAM, Administratrix. |
Court | Georgia Court of Appeals |
Fulcher, Fulcher, Hagler, Harper & Reed, J. Walker Harper, W. M. Fulcher, for appellants.
Franklin H. Pierce, for appellee.
Enumerations of error which are not argued in appellant's brief are deemed to have been abandoned.
1. A charge excepted to and enumerated as error was:
The exception is that the charge places an absolute duty on the motorist to stop or be able to stop under any and all circumstances, when the true rule is that he is required to exercise ordinary care and drive his vehicle in the manner of an ordinarily prudent man.
The exception is meritorious. The charge places the duty on the motorist to drive "so that he can avoid a collision, or can turn out sufficiently to pass." Generally the exercise of ordinary care will enable him to do that, but whether there is a collision or whether he can turn out sufficiently to pass is not wholly dependent upon his actions. He may be unable to do either, even though he is in the exercise of ordinary care. Actions of other drivers, road hazards and other matters may intervene and bring about a collision with the car ahead or with another vehicle, when the defendant is without fault, or only partly at fault.
Neither Code Ann. § 68-1641 nor § 68-1626 Flanigan v. Reville, 107 Ga. App. 382 (2) (130 SE2d 258). Accord: Davenport v. Robinson, 109 Ga. App. 753 (137 SE2d 380); Attaway v. Morris, 110 Ga. App. 873 (5) (140 SE2d 214). The Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov. Sess., p. 556, et seq.), as amended, Giles v. Voiles, 144 Ga. 853 (1) (88 SE 207).
In Giles the Supreme Court dealt with a charge that "The degree of diligence which must be exercised in a particular exigency is such as is necessary to prevent injuring others," which was held to have been too broad in its requirement, just as we find to be the case here. The court had also charged (as had been held in Denson v. Ga. R. & Elec. Co., 135 Ga. 132 (68 SE 1113)) that "A power company in furnishing electricity to patrons, with respect to employees of the latter rightfully upon the premises of the patron and likely to come into contact with wires carrying the current supplied, is bound to use ordinary care, which demands that the power company shall use such diligence in preventing injuries to such employees as is commensurate with the danger involved in the use and control of such a subtile and deadly agency as electricity," and this the court disapproved, asserting that ...
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...the cars in front of him and was therefore forced to quickly change lanes in order to avoid hitting the car ahead. Thomason v. Willingham, 118 Ga.App. 821, 823, 165 S.E.2d 865 involved an erroneous jury charge which placed 'an absolute duty on the motorist to stop or be able to stop under a......
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